[2010] KEHC 541 (KLR)
The court found that the preliminary objection did not raise any valid points of law that would justify either the annulment of the grant or the striking out of the application for confirmation of grant. The petitioner, as the widow of the deceased, is the proper administrator of the estate, and the inclusion of...
Source-derived case information.
- Citation
- [2010] KEHC 541 (KLR)
- Parties
- Applicant: Tunai Nafula Barasa; Respondent: Nyongesa Sichangi; Respondent: Gabriel Wekesa Barasa; Respondent: Cleophas Mutambo Maji
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1 of 2008
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Confirmation of Grant, Preliminary Objection, Administration of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tunai Nafula Barasa
Applicant
Nyongesa Sichangi
Respondent
Gabriel Wekesa Barasa
Respondent
Cleophas Mutambo Maji
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection by the objectors raises valid points of law to warrant striking out the application for confirmation of grant or annulment of the grant.
- 2 Whether the inclusion of alleged strangers as beneficiaries and the alleged disinheritance of objectors justifies the relief sought.
Ratio Decidendi
The court found that the preliminary objection did not raise any valid points of law that would justify either the annulment of the grant or the striking out of the application for confirmation of grant. The petitioner, as the widow of the deceased, is the proper administrator of the estate, and the inclusion of alleged strangers or the claim of disinheritance are matters to be addressed during the hearing on distribution, not at the preliminary stage. The court emphasized that striking out the application or annulling the grant would not advance the matter and would instead cause unnecessary delay. Accordingly, the preliminary objection was rejected, and the parties were directed to...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is rejected.
- Parties are directed to take directions and proceed to hearing on the distribution of the deceased’s estate.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT BUNGOMA
SUCCESSION CAUSE NO.1 OF 2008
IN THE MATTER OF THE ESTATE OF THE BARASA SICHANGI KIMASWA (DECEASED)
AND
TUNAI NAFULA BARASA..................................ADMINISTRATOR
AND
NYONGESA SICHANGI...............................................OBJECTOR GABRIEL WEKESA BARASA....................................OBJECTOR CLEOPHAS MUTAMBO MAJI...................................OBJECTOR
RULING
This isa ruling on a preliminary objection by the objectors Nyongesa Sichangi, Gabriel W. Barasa and Cleophas M. Maji dated 24/04/2010 seeking for striking out of the petitioner’s application for confirmation of grant. The reasons given are that the petitioner has included names of strangers as beneficiaries of the estate and disinherited the objectors.
I have perused the record. The court had directed the petitioner to file the application for confirmation of grant and the objectors to file an affidavit of protest against confirmation. This was after talking to the parties and finding that they were unlikely to agree on the way forward. I do not think that annulling the grant is the right way to go. This is because the petitioner is the widow of the deceased and there is no question of her being the right person to administer the estate. Striking out the application for confirmation of grant is not the right thing to do. The reason being that that kind of action will result in retreating as far as this matter is concerned.
The preliminary objection raises no points of law to warrant the annulment of the grant or the striking out of the application. I therefore reject it accordingly.
I direct that parties take directions in this case and proceed to have the case heard as to the distribution of the deceased’s estate.
F. N. MUCHEMI JUDGE
Ruling dated and delivered on the 2nd day of December 2010 in the presence of the Petitioner and objectors.
F. N. MUCHEMI JUDGE